Russia Fights Claims of Rebel Support in Top UN Court

The International Court of Justice held the first day of hearings in a dispute between Ukraine and Russia on Monday, June 3, 2019. (UN Photo/ICJ-CIJ/Frank van Beek.)

THE HAGUE, Netherlands (CN) – The International Court of Justice heard arguments Monday over whether it has jurisdiction to decide a case accusing Russia of funding rebel groups in eastern Ukraine and discriminating against an ethnic group in the annexed Crimea region.

Ukraine first filed suit against Russia in The Hague-based ICJ, the United Nations’ highest court, in January 2017, claiming Moscow violated both the International Convention for the Suppression of the Financing of Terrorism, or ICSFT, and the International Convention on the Elimination of All Forms of Racial Discrimination, abbreviated as CERD.

The ICSFT prong of the case centers on a series of violent events which Ukraine alleges Russia either committed or provided support for, including the shooting down of Malaysian Airlines Flight MH17 in 2014.

Ukraine further alleges that armed rebel groups, operating in eastern Ukraine, are essentially proxies for the Russian government that have repeatedly attacked civilians. The Office of the UN High Commissioner for Human Rights found that more than 10,000 people have been killed in the conflict and another 25,000 injured. At least 2,500 of those killed were civilians.

The other prong of Ukraine’s complaint rests on allegations that since annexing the Crimea region of Ukraine in 2014, Russia has “systematically undermined the linguistic and educational rights of the ethnic Ukrainian community in Crimea.” In particular, Ukraine cites the treatment of the Tatar people as evidence of Russia’s discrimination.

The Tatars include Turkic-speaking groups off people who originated around the Volga River in western Russia. Their population is estimated at around 5 million and they long faced oppression under the Soviet Union.

On the same day it filed its complaint, Ukraine also requested that the ICJ institute provisional measures against Russia – particularly an order preventing its alleged funding of terrorist organizations and oppression of the Tatar people in Crimea region.

The court held initial hearings in March 2017 and held the following month that it had had prima facie jurisdiction over the case, but left open the possibility that Russia could later argue Ukraine’s claims do not fall under the ICSFT.

The ICJ also found there was insufficient evidence to warrant provisional measures with regards to the terrorism funding accusations, but said Russia should ensure the Tatar people are not discriminated against.

Russia filed preliminary objections, arguing the top UN high court does not have jurisdiction over the case and that many of the events Ukraine cites as proof of wrongdoing do not fall under the ICSFT or CERD.

Monday’s hearing on the objections were opened by Dmitry Lobach, Russia’s ambassador-at-large from the Ministry of Foreign Affairs.

He asked for the case to be dismissed on jurisdictional grounds, describing Ukrainian rebels as “radicals” and claiming Crimea wasn’t seized by Russia, but the people living there instead chose to break away from Ukraine.

Lobach turned the floor over to London lawyer Samuel Wordsworth of Essex Court Chambers, who denied that Russia had ordered the strike on MH17. An international investigation found last year that the missile that shot down the passenger airliner, killing all 298 people abroad, was fired by a Russia-based military unit.

Wordsworth also claimed that other events cited by Ukraine were either committed by people unaffiliated with Russia or have been exaggerated, repeating arguments he has made earlier in the case.  

During the initial hearings in March 2017, Wordsworth told the ICJ that there “is no evidence before the court, plausible or otherwise, that Russia provided weaponry to any party with the intent or knowledge that such weaponry be used to shoot down a civilian aircraft.”

Russia had previously denied having a Buk surface-to-air missile in the area, claiming Ukraine shot down the plane.

Andreas Zimmerman, professor of law at the University of Potsdam, followed Wordsworth in Russia’s opening arguments.

He addressed the issue left open by the court of whether the ICSFT is applicable to the case. Zimmerman contended that since the 1999 treaty does not expressly prohibit a state from financing terrorism, instead using the phrase “any person,” Russian cannot be held responsible for the actions of people not connected to its government.  

Russia’s legal team then turned its attention to whether the ICJ has jurisdiction over the CERD portion of Ukraine’s complaint.

Dr. Grigory Lukiyantsev, another representative of the Russian Ministry of Foreign Affairs, argued that Ukraine had not attempted to cooperate with Russia in solving the issues it raises.

CERD requires states to first attempt to settle disputes by arbitration. In a novel approach, Ukraine argued during the 2017 hearings on provisional measures that the ICJ is a form of arbitration and therefore it met its requirement under the 1969 agreement.   

On Tuesday, Ukraine will deliver its opening arguments in an effort to persuade the court that it does have jurisdiction over the claims.

“This issue of jurisdiction was already decided by the court two years ago,” said Olena Volodymyrivna Zerkal, Ukraine’s deputy minister of foreign affairs, said in a statement Monday. “We will show this clearly tomorrow.”

The case before the ICJ isn’t the only recent legal face-off between Russia and Ukraine. This week’s hearings come after another UN court ruled two weeks ago that Russia must release to Ukraine 24 sailors and three ships that it has been holding since 2018. A Moscow court, however, extended their detention last week.

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